The procurement law is finally to be reviewed to remove bottlenecks in tendering for public projects and make it easier for private entities to transact business.
The ministry of Finance is spearheading the process to amend the Public Procurement and Disposal Act 2005 and attendant regulations, ostensibly to align it with the new Constitution, but there is the view that it is largely to fix growing tendering nightmares.
Law society cautions
However, the Law Society of Kenya has cautioned against mutilating the law and has asked the government identify ways to address tendering loopholes and confront corruption which it says is the main issue.
Public Procurement Oversight Authority director-general Maurice Juma told the Sunday Nation in an interview that the agency and other parties have started on the review.
Mr Juma said the amendments would help plug a number of shortcomings and incorporate lessons learnt over the five years that the Procurement Act has been in force.
“A number of stakeholders’ views and input have been gathered and will inform the amendments envisaged in the new Act,” he said.
“At this point in time, views and comments gathered from stakeholders are raw proposals for amendments. The next step will be validation of these views through public consultative meetings with various stakeholders.
"It is only then that we will have specific and concrete proposed amendments that we can share with you and other interested parties,” he said when pressed for specifics.
The review is in response to a spate of court cases and controversies that continue to plague tendering for major public projects, including those in critical areas such as the forthcoming General Election, national security and infrastructure development, he said.
The push to amend the procurement law recently attracted the attention of Prime Minister Raila Odinga who said new legislation must be put in place urgently to cater for Kenya’s development needs.
The current one, he noted, was forced on Kenya by the International Monetary Fund and the World Bank.
The Sunday Nation learned that among the changes being sought by the private sector include the separation of the tender process for huge projects from the routine undertakings by ministries and public agencies.
Local suppliers also want to use the window to seek legal protection against stiff competition from established foreign firms while a stringent appeals formula is being proposed as the best way to escape prolonged litigation among querulous bidding parties.
Kenya’s Vision 2030 chief executive officer Mugo Kibati said the amendments were inescapable if the country is to move forward. “We cannot move this way, and I have made my point to the Treasury and the Public Procurement Oversight Authority,” he said.
Mr Kibati said tendering for infrastructural projects with a huge economic impact on the country should not be subject to the same kind of bureaucracy common in ministries and the same adjudicating committees involved in buying furniture and cars.
“The current law also encourages unnecessary and costly court suits and is short on the sophistication that is needed for some of the projects lined up to attain growth levels of a newly industrialised economy,” Mr Kibati said.
A new law that offers remedy to aggrieved parties but does not hold the nation at ransom or punish hard-working public servants at the behest of a few profiteers is what is desired, he said.
Kenya Publishers Association chairman Lawrence Njagi said the new law should clearly define the role of the public private partnership in procurement.
“For instance, to get value for money, we as publishers would like to be involved in the auditing of post- bidding services to ensure what was sold is actually delivered to the final consumers,” he said.
Mr Njagi said the 10 per cent country preference rule should also be operationalised to safeguard local manufacturers against undue foreign completion.
“The private sector would also like to be involved in public sensitisation because as it is now the task cannot be carried out sufficiently by the oversight authority,” he said.
But the law society says corruption and lack of capacity in public entities, rather than the flaws in the law itself, were to blame for the procurement gridlock. (READ: Public procurement a haven of graft, TI)
“There could be some justification for those advocating the amendments, but I must say that corruption remains the biggest threat, and therefore as a country we should be careful not to mutilate the stringent regulations to check the vice,” cautioned Mr Eric Mutua, the law society chairman.
“We should look at the bigger picture and demand that only minimal amendments be allowed,” he said. The chairman said many times government officials have overlooked legal counsel to engage in wheeler-dealing.
Earlier, Mr Juma reinforced the corruption claim and said it is a monster that all must be ready to face. He also said the penchant for shortcuts did not help matters.
“We have had instances where procuring entities are brought before the Public Procurement Administrative Review Board and advised to address various anomalies before they re-tender. When they re-tender, these entities ignore the advice of the Board and commit the same mistakes… In such cases, the law cannot be blamed for deliberate human failures,” he said.
On the positive, he said the high number of procurement cases and complaints filed with Public Procurement Oversight Authority and the procurement review board is proof that more people were now conversant with the procurement law and are aware of their rights.